R v Wyley [2009] VSCA 17

2 On 10 April 2008 at the County Court at Geelong the appellant pleaded guilty to one count of recklessly causing serious injury to Chad Nolan. On 14 April 2008 he was sentenced to three years' imprisonment and a non-parole period of 18 months' imprisonment was fixed.

3 On 7 August 2008 the appellant was granted leave to appeal by a single judge of this Court.

4 In the early hours of Saturday 21 April 2007 the appellant and a group of his friends attended at the Eureka Hotel in Little Malop Street Geelong. Chad Nolan also attended that hotel. However at approximately 4.20 am Chad Nolan left the venue in company with a number of young women and one Cameron Brereton. Outside the hotel friendly banter concerning Chad Nolan's stature and his clothing took place. The evidence is that he is a slightly built man who was wearing a green t-shirt that evening. Those facts led to others referring to him as a 'leprechaun'. While this good natured banter was going on, Brereton returned back into the hotel where the appellant was seated at a bar with his girlfriend, Jennifer Kuster. Brereton appeared to Jennifer Kuster to be angry and aggressive. The appellant, Jennifer Kuster and Brereton went outside the hotel. At that time the friendly banter between Chad Nolan and the others was continuing. Brereton then walked towards Nolan. The appellant later told police that upon Brereton saying he intended to hit Nolan, he (the appellant) followed Brereton 'just to make sure everything was alright'. Brereton and the appellant walked towards Mr Nolan. Brereton then threw a punch at Nolan who was taken aback and stepped some metres backwards. Street surveillance video recorded the attack. The video demonstrates that after Mr Nolan

stepped back the appellant stepped forward and with apparent considerable force punched Mr Nolan in the face. Upon this occurring Mr Nolan fell instantly to the ground. A number of witnesses heard a thud and thereafter Mr Nolan appeared to them to be unconscious. The appellant then walked away. Brereton, however, remained, and continued to punch the prostrate body of Mr Nolan. In consequence of these events, Mr Nolan suffered a fractured skull, intracranial haemorrhage, a broken nose, a fractured eye socket, fractures to the back of the neck and some loss of hearing. He was required to be airlifted to the Alfred Hospital Trauma Unit.

1. The learned sentencing judge erred in imposing sentence by taking into account injury, loss and/or damage suffered by the victim for which the appellant was not responsible.
2. The learned sentencing judge erred in according too much weight to general deterrence in all the circumstances.
3. The sentence imposed and non-parole period is manifestly excessive.

6 In the course of his sentencing remarks his Honour said as follows:

The overall injuries which Chad Nolan sustained were initially life threatening and the victim impact statements declared by his parents and his sister, graphically describe the position in the hours and day or so immediately after the assault. Fortunately I have been told that Chad Nolan has made a remarkable recovery from his injuries, although his victim impact statement which is couched in very moderate terms indeed, refers to the emotional trauma he has suffered as a result of the attack.

It is submitted on behalf of the appellant that the nature of his Honour's reference to the 'life threatening' injuries of the victim was more than mere narrative, and that it influenced the actual sentence imposed. It is argued that the appellant was responsible only for the infliction of serious injury, recklessly, to the head area of the victim. He was not responsible for any injury, loss or damage beyond this. It is argued that it was not open to his Honour to find that the appellant had caused 'life threatening' injury.

7 In my view there is no substance in the arguments advanced under ground 1. The sentencing judge is a most experienced judge indeed. It should be observed that the impugned paragraph of his Honour's sentencing reasons refers to the 'overall injuries'. However when what his Honour said is looked at in the context of the other material, it simply cannot be argued that his Honour made an error in imposing sentence by taking into account loss and/or damage suffered by the victim for which the appellant was not responsible. In the course of the opening remarks made by the prosecutor upon the plea the following exchange took place:

PROSECUTOR: Your honour I don't know that you can be too sure as to who caused the injury or what caused the injury I should say. When he hit the ground apparently there was a sickening thud.

HIS HONOUR: There was a very large thud, according to some part of the evidence.

PROSECUTOR: That is right that it was rather a very unpleasant sound. Now it would seem to me with respect that you could very easily conclude that that could have caused a fractured skull. But the other injuries, nose and so on could clearly have been caused when he was being punched when he was on the ground.

HIS HONOUR: One would think so.

PROSECUTOR: Well his head would have, while he was allegedly unconscious, and it seems to me the evidence supports that assertion, with respect and if his head is on the ground and he is being punched from the top then there's no give in the head at all, it's being punched.

HIS HONOUR: Really, I can so far as the present prisoner is concerned, is (sic) find that he suffered a serious injury, because he has admitted that.

PROSECUTOR: Yes.

HIS HONOUR: And that is a serious head injury without going into any further particulars.

PROSECUTOR: Yes ...

8 Later, and in the course of submissions being made on behalf of the appellant, the following exchange between his Honour and the appellant's counsel took place:

HIS HONOUR: You agree that I can really only find that Mr Wyley caused a serious head injury.

COUNSEL: I am sorry your Honour?

HIS HONOUR: That I can only find in general terms.

COUNSEL: Yes, that's, yes.

HIS HONOUR: That the punch that he did and what occurred thereafter caused a serious head injury.

COUNSEL: That's right.

HIS HONOUR: And the other fractures are far more likely to have been caused as a result of the attack by the other man Brereton.

COUNSEL: It would seem that way in the absence of any evidence that can distinguish the actions and from the injuries.

9 Furthermore and in the course of his sentencing remarks his Honour said as follows:

In spite of the fact that the co-accused had punched Chad Nolan twice to the head or face, you then punched Nolan to the face with your right clenched fist and the force of your blow was such that Nolan appeared to be knocked unconscious and security vision shows his body collapsing backwards and witnesses stated that Chad Nolan's head hit the pavement with what was described as a "sickening thud". You having delivered this one blow, walked away from a prostrate Chad Nolan and did not take any further part in the assault.

I impose sentence on the agreed basis that your punch caused Chad Nolan a serious head injury. You made a decision to back up Brereton, although he obviously did not need any support and in doing so, you made what you described as a "split second decision" to punch Chad Nolan. You ignored your girlfriend's warning to hold back and said you were prepared to support Brereton in case he got hurt. Then Brereton of course on his own admission punched Chad Nolan five or six times to the face, as Nolan lay prostrate on the ground. The overall assault on Chad Nolan was a very serious assault indeed well meriting the description as "brutal, callous" and after Chad Nolan was knocked to the ground, cowardly. However I bear firmly in mind that you fall to be sentenced only for the part which you played in the overall incident. That is, for the one punch, which felled Chad Nolan. That reckless action on your part resulted in a serious injury to the unfortunate victim. The Crown does not allege that you and the co-accused were acting in concert, nor does the Crown allege that you aided and abetted the co-accused in the violent assault which he had inflicted on Chad Nolan while Nolan lay unconscious on the ground after the blow that you had delivered. You walked away after you recklessly delivered the one punch to Nolan and did not take or play any further part in the assault. However the fact remains that the blow that you delivered caused serious injury to Chad Nolan, that is, a serious head injury. (My emphasis.)

It is obvious that his Honour was sentencing the appellant on the basis that his criminality was limited to the infliction of one punch which recklessly caused a serious injury to the head. As stated above, in my view ground 1 has no substance.

10 It is submitted that his Honour referred repeatedly to the need to denounce and deter the appellant's conduct. At the conclusion of his summary of the factual circumstances, his Honour said:

Relevant sentencing considerations for what is a serious offence, include a combination of just punishment, deterrence, that is, deterrence to you personally, as well as deterrence to others who may be tempted to act as you did. The sentence should also affect this Court's disapproval of such gratuitous and inane violence as you exhibited in punching Chad Nolan as well as taking account your prospects so far of rehabilitation is concerned. I regard general deterrence and denunciation as important considerations in the sentencing process, although given your age, rehabilitation is also an important factor to be balanced in that overall equation.

Having referred in detail to the appellant's background and the importance of rehabilitation, his Honour said:

Although the rehabilitation of a young man is important to weigh up in the sentencing process and whilst I accept that you do have prospects for rehabilitation, particularly now that you have the responsibility of a young son, nonetheless general deterrence and denunciation remain important considerations. The message must surely be heard loudly and clearly that this type of mindless violence and aggression will not be tolerated by the courts. Young men must realise that drinking too much alcohol does not excuse physical violence and that the moment of senseless aggression, such as that in which you engaged on this occasion, has the potential to lead to a substantial time in prison. To impose a suspended sentence would in my judgement, fail to give appropriate weight to the principles of general deterrence and denunciation, balancing and weighing up the matters to which I have referred.

In my view the remarks made by his Honour in relation to the issue of general deterrence set out above were entirely justified and appropriate. The regrettable fact is that gratuitous violence by drunk and aggressive young men in our streets at early hours is prevalent and the cause of grave harm on many occasions. In my view his Honour's remarks can only be endorsed.

11 However, it is submitted on behalf of the appellant that he being 21 when he committed the offence, and his prior convictions not being for matters of personal violence, his Honour over emphasised the punitive aspects of the sentencing process. It is submitted on behalf of the appellant that his criminality related to one punch, he being reckless as to its consequences. His background is one of adversity, he made admissions when arrested and pleaded guilty at an early stage and his prospects of rehabilitation are good. Reliance was had upon R v Mills[1], R v Huynh[2], DPP v Zullo[3], R v Tafa Sa[4], DPP v Lawrence[5] and DPP v Fevaleaki[6]. It is submitted that rehabilitation of the appellant should have been the primary objective of his Honour in sentencing the appellant. However as the Court said in Director of Public Prosecutions v SJK and GAS:[7]

When youth is raised for sentencing considerations, the focus is usually placed upon the offender's prospects of rehabilitation, but this is by no means the only basis upon which it assumes relevance. For at least a century, the attribution of criminal responsibility and the response in terms of the dispositions handed down upon offenders has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability and accountability. In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.

In my view his Honour's sentence did not give too much weight to general deterrence. His Honour was cognisant of the relevant matters in mitigation of sentence and referred specifically to them and took them into account.

12 The circumstances before his Honour were that although the appellant had no prior convictions for violence he had convictions related to alcohol and to driving a motor vehicle whilst exceeding the prescribed blood alcohol concentration limit. In particular and as his Honour noted, the appellant had been convicted of nine offences in March of 2007. The subject offence was committed one month and two days after that conviction and after the appellant had been placed upon a wholly suspended sentence of three months' imprisonment and a community-based order. The subject offence was a breach of those sentencing orders.

13 The maximum penalty for causing serious injury recklessly is 15 years' imprisonment. His Honour regarded the appellant's offending as a serious example of such offence. As pointed out before us by counsel for the respondent, there were a number of significant matters which related to the offence: the slightly built victim had done nothing to provoke the assault; the appellant was specifically requested by his girlfriend not to get involved in the confrontation; before punching the victim the appellant had earlier witnessed the victim's passive response to the attack on him by Brereton; the appellant's assault occurred without any warning giving the victim no opportunity to take any action to protect himself; and the appellant punched the victim to the face with sufficient force to knock the victim to the ground and render him unconscious. Furthermore, as stated above, this conduct occurred during the currency of a suspended sentence.

14 In my view no error can be found in his Honour's approach. It should be noted that the non-parole period fixed by his Honour was 50 per cent of the head sentence of three years. That non-parole period reflected his Honour's concern about the appellant's relatively young age and his rehabilitation prospects.

15 By reason of the matters referred to above I am of the clear view that his Honour's sentence cannot be said to be manifestly excessive.

17 For the reasons given by Kellam JA, I agree that the appeal should be dismissed. In deference to the careful argument advanced on behalf of the appellant, I would add the following additional remarks for myself. As the appellant would have appreciated, everything that could have been said on the significant issue of his youth and his prospects of rehabilitation was articulated on his behalf by counsel.

18 The focus of much of the submission was on the applicability of the following principles in the decision in R v Mills[8] ('Mills'):[9]

1. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
2. In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
3. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying the adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expression in s 5(4) of the Sentencing Act).

19 In the course of argument, it was contended for the appellant that there were now recognised classes of case to which the principles in Mills were inapplicable. Conversely, it was said, there are certain kinds of case where those principles should be given 'full application'. With respect, however, I consider that these submissions reflect a misunderstanding of what was said in Mills. There is not some special set of rules applicable to young offenders of which it can be said either that they do not apply at all or, alternatively, that they apply fully. Rather, what Mills did, in my respectful opinion, was to draw attention to the great significance for sentencing of looking to the offender's future, as well as to the past conduct for which the offender is being sentenced.

20 Mills constantly reminds sentencing courts, and this Court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lawrence[10] and R v Nguyen,[11] are not to be viewed as 'excluding the principles in Mills', but simply as instances of how those principles are to be applied.

21 As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of case. In relation to certain classes of case, however, general deterrence may have a particularly important role to play. The present case is of that kind. Violence of this kind, in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence will vary with the circumstances of the case. The sentencing judge therefore asked himself exactly the right question in [29] of the sentencing reasons, which is set out in [10] of Kellam JA's reasons.

22 Once it is recognised that the judge was called on to balance conflicting considerations, the debate about whether the balance was rightly struck can be seen to be in substance, a debate about whether this was the right sentence. But, as this Court has said repeatedly, there is no right sentence. There is a range within which the sentencing discretion can lawfully be exercised.[12] The only way to produce a 'correct' sentence would be to have mathematical sentencing, or sentencing by computer, and the community has never wanted that.

23 When a sentencing judge has carefully and conscientiously addressed all the relevant matters and has undertaken the necessary task of weighing up the competing factors, this Court will be reluctant to intervene. A sentence appeal is not - and cannot be allowed to become - a re-hearing on the merits. The risk with the ground of manifest excess is that it tends to lead in exactly that direction. This Court will only intervene where the judge has gone clearly or demonstrably wrong.

24 In the end, therefore, the argument about the youth and rehabilitation considerations on the one hand, and general deterrence on the other, is an argument about the weight to be attached to those factors. To demonstrate that inappropriate weight has been given to one matter or another, one must examine the result arrived at by the sentencing judge, since no individual weighting can ever be discerned. In the present case, the sentence imposed does not suggest that there was any indefensible weighting attached to any of the relevant factors.

[1] [1988] 4 VR 235.

[2] [2004] VSCA 156.

[3] [2004] VSCA 153.

[4] [2004] VSCA 182.

[5] [2004] VSCA 154; (2004) 10 VR 125.

[6] [2006] VSCA 212; (2006) 165 A Crim R 524.

[7] [2002] VSCA 131.

[8] [1998] 4 VR 235.

[9] Ibid, 241 ((Batt JA), with whom Phillips CJ and Charles JA agreed).

[10] [2004] VSCA 154; (2004) 10 VR 125.

[11] [2002] VSCA 130.

[12] R v MacNeil-Brown; R v Piggott [2008] VSCA 190, [6]-[8].